This next guest post comes from Laura Monroe, from DoOver.com:
[contemplate1] Over the past 15 years, more and more federal and state statutes have been aimed at discouraging and even punishing acts of domestic violence. Congress passed the Violence Against Women Act (VAWA) in 1994, which is comprised of numerous federal statutes that enable prosecution of domestic violence offenders in the federal courts.
At the state level, legislation such as the Uniform Child Custody Jurisdiction and Enforcement Act and the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act have sought to further protect victims of domestic violence. Within the context of divorce, domestic violence can play an important role in matters involving child custody/visitation, property division, and mediation. But in terms of property division, opinions differ from state to state, with some states heavily considering any incidents of domestic violence and others for the most part disregarding them. Here’s a look at the role domestic violence can play in the process of splitting up assets during a divorce.
Domestic Violence as a Causal Factor
For some courts, the issue of domestic violence has a significant impact on the division of property in divorce. In the U.S., this is usually predicated on whether that particular state considers fault to be a factor in the divorce proceedings. In some jurisdictions, the presence of domestic violence is specifically addressed and weighed in the process of property division specifically, in those states that consider fault to be a factor in asset division, a category into which by most standards domestic violence would certainly fall. In many cases, it appears that the courts assume the abuse was the causal factor in the marital breakdown. Still other courts hold that the domestic violence is relevant, but only in those cases where it is actually proven that it was the precipitating cause for the divorce.
Domestic Violence as Economic Misconduct
Some states fall more into the center of the spectrum, not allowing the courts to consider marital fault when it comes to domestic violence but instead permitting the consideration of economic fault. In this case, for domestic violence to be considered in the division of property, the court must find evidence of the economic impact that the spousal abuse might have had, such as increased medical bills or a decreased ability to work. In other words, if the abuse resulted in an unreasonable depletion of marital assets, then the victim of the violence would be entitled to a greater percentage of those assets. Some of the evidence that may be presented in court as proof of economic misconduct include: the loss of a job because of absenteeism due to injury or illness that s a direct result of domestic violence, the victim having to move multiple times to avoid violence (which is costly and can interfere with the continuity of employment), elevated costs of health care plans due to poor health or regular injury, and other elevated health care costs to manage a chronic condition brought on by spousal abuse.
Domestic Violence Limited to Egregious
Still other states have taken the view that domestic violence is relevant in property distribution only if the abuse was egregious. This becomes much trickier for the victimized spouse to establish, as the term egregious can have many different connotations and is often seen in the eye of the beholder. For instance, in New York, only a few cases have found the abusive conduct to be egregious, and in most of these cases, the ongoing course of abusive conduct eventually culminated in an attempted murder. Other states have taken a similar approach. In Michigan, fault is relevant to property division only if it is particularly outrageous or shockingly unforeseeable. Likewise, in Kansas, the fault is only relevant if it s so extreme that a failure by the court to penalize the behavior would itself be inequitable.
Domestic Violence in the Exclusion of All Fault
At the far end of the spectrum (particularly in California), fault is not considered at all in the division of marital assets, resulting in the exclusion of the domestic violence factor altogether. Typically, these states adhere to the Uniform Marriage and Divorce Act, which requires the division of assets without regard to marital misconduct. However, most courts in these circumstances allow consideration of economic fault, which can open the door to consideration of abuse when it falls under the umbrella of Economic Misconduct.
In the end, the presence of a pattern of domestic violence/spousal abuse almost always plays a role in the determination of the division of marital property. Whether it’s considered as a matter of principle, is weighed as evidence of economic misconduct, or requires a certain degree of shock value to gain notice, domestic violence can have a significant impact on divorce rulings concerning the division of assets.
My advice to anyone facing divorce is to seek legal advice and this article, reinforces this. The legal advice will tell you your rights and guide you in your settlement discussions with your soon-to-be-ex. Even if you and your spouse are thinking about handling your own divorce, it is still critical that you understand your legal position. Even if you think you and your spouse have no assets, it is still critical that you understand your legal position. And any extenuating circumstances, such as domestic violence and especially if you have children, makes this even more critical. Understood?
Photo credit: Shira Golding